! ! ! ! Canadian Centre for Elder A Practical Guide Law to Elder Abuse and A Division of the British Columbia Neglect Law in Law Institute Canada 1822 East Mall University of British Columbia Vancouver, British Columbia Canada V6T 1Z1 Voice: (604) 822-0564 Fax: (604) 822-0144 E-mail: [email protected] Website: http://www.bcli.org/ccel July 2011 ! Table of Contents A. Introduction 1. Purpose of this Legal Resource 2. Responding to Elder Abuse and Neglect: Guiding Principles B. Defining Elder Abuse 3. What is Elder Abuse? 4. Examples of Abuse C. Elder Abuse and the Law 5. Is Elder Abuse and Neglect a Crime? 6. Ageism, Elder Abuse and Human Rights Law 7. Mental Capacity and Consent 8. Professional Confidentiality and Solicitor-Client Privilege 9. Mandatory Reporting of Elder Abuse D. Elder Abuse in your Region 10. Law in the Provinces and Territories ! British Columbia ! Alberta ! Saskatchewan ! Manitoba ! Ontario ! Québec ! Nova Scotia ! New Brunswick ! Prince Edward Island ! Newfoundland ! Northwest Territories ! Yukon ! Nunavut 11. Table: Responding to Elder Abuse and Neglect – Summary of the Law 12. Resources ! "! ! 1. Purpose of this Legal Resource The following material will: • Introduce the concept of elder abuse • Provide a summary of key laws relevant to elder abuse and neglect • Identify obligations to respond to abuse, neglect and risk • Identify key agencies to contact if you are concerned that an older adult is being abused or neglected • Outline the relationship between mental capacity and the law in relation to elder abuse • Discuss the impact of professional confidentiality obligations and privacy law on the ability of professionals to disclose an older adult’s confidential information in order to follow up on concerns regarding abuse and neglect • Provide a list of resources The Canadian Centre for Elder Law (CCEL) has produced this elder abuse legal resource to assist the following agencies to produce educational materials of relevance to their members: • Canadian Association of Occupational Therapists • Canadian Dental Hygienists Association • Canadian Nurses Association • Fédération des associations de jurists d’expression française • Fédération des locataires d’habitations à modique du Québec • Fondation du centre de santé et de services sociaux de la Vieille-Capitale This tool has been produced for a diverse audience that includes volunteers with no university or college education and professionals with varied education levels. Sections A and B are written in plain language in order to be accessible to most readers. Sections C and D were created for the professional associations named above. This tool has been designed to apply to abuse and neglect occurring anywhere in Canada. Each province and territory has a unique set of laws that apply to elder abuse. See Section D for a summary of the laws in the province or territory in which you work or volunteer. This project was funded by the Human Resources and Social Development Canada New Horizons for Seniors Program. This revised edition, published in July 2011, includes revisions to sections 2 and 12 of the tool. ! "! ! COPYRIGHT © British Columbia Law Institute This material is copyrighted by the British Columbia Law Institute. We encourage wide distribution of this Guide and use of this material by other individuals and organizations, with the understanding that you agree not to make any modifications to the Guide. We also ask that individuals and organizations inform us prior to using this Guide in order to assist us with evaluation of this material. WARNING This material contains information and guidance for practice. The information is not legal advice. Abuse or neglect of older adults can have serious consequences. In many instances it will be your obligation to ensure that an older adult gets legal advice as soon as possible. Legal advice will help protect your client. It can also protect you and your employer from a lawsuit. The law is always changing. All material provided is up to date as of August 31, 2010. Any changes to the law after August 31, 2010 are not reflected in these materials. ! "! ! 2. Responding to Elder Abuse and Neglect: Guiding Principles The following principles are meant to help professionals and volunteers understand and effectively respond to the rights of older adults who are abused, neglected or at risk: 1. Talk to the older adult Ask questions. Talk to the older person about his or her experience. Help the person to identify resources that could be helpful. 2. Respect personal values Respect the personal values, priorities, goals and lifestyle choices of an older adult. Identify support networks and solutions that suit the older adult’s individuality. 3. Recognize the right to make decisions Mentally capable older adults have the right to make decisions, including choices others might consider risky or unwise. 4. Seek consent or permission In most situations, you should get consent from an older adult before taking action. 5. Respect confidentiality and privacy rights Get consent before sharing another person’s private information, including confidential personal or health information. 6. Avoid ageism Prevent ageist assumptions or discriminatory thinking based on age from affecting your judgment. Avoid stereotypes about older people and show respect for the inherent dignity of all human beings, regardless of age. 7. Recognize the value of independence and autonomy Where this is consistent with the adult’s wishes, assist the adult to identify the least intrusive way to access support or assistance. 8. Know that abuse and neglect can happen anywhere and by anyone Abuse and neglect of older adults can occur in a variety of circumstances from home care to family violence. 9. Respect rights An appropriate response to abuse, neglect, or risk of abuse or neglect should respect the legal rights of the older adult, while addressing the need for support, assistance, or protection in practical ways. ! "! ! 10. Get informed Ignorance of the law is not an excuse for inaction when someone’s safety is at stake. If you work with older adults you need to educate yourself about elder abuse. B. Defining Elder Abuse 3. What is elder abuse and neglect? Elder abuse includes actions that cause physical, mental, financial or sexual harm to an older adult. Neglect includes situations where a person or organization fails to provide services or necessary care for an older adult. Elder abuse and neglect can be broadly categorized into five categories: o physical: causing pain, injury or harm to health o financial: illegal or improper use of funds or assets, such as theft or fraud o psychological: infliction of mental anguish or suffering o sexual: non-consensual sexual activity or harassing sexual comments o neglect: refusal or failure to provide services or necessary care An adult might experience more than one type of abuse and neglect by the same person. William, who had a number of physical health problems and a diagnosis of dementia, hired a young man, Elliot, to provide him with assistance with household tasks, medication management, accompaniment to appointments and banking. Elliot used his position to convince William to give him a great deal of additional money to spend on his own interests and also withdrew funds from William’s accounts without consent. Neighbours found William alone in his home in a state of extreme malnourishment and dehydration with no access to his medication. Elliot’s behaviour amounts to both financial abuse and neglect. Although older adults are mistreated by strangers and con artists, elder abuse and neglect often occurs in the context of a relationship. Older adults can be abused and neglected by family, friends, spouses, volunteer caregivers, legal guardians, care facility staff and professionals such as doctors, nurses and lawyers. Elder abuse and neglect can occur anywhere: in the community, at home, in hospital, in a clinic, at an office or in a care facility. Abuse and neglect can involve one incident of mistreatment or can be part of a pattern of abuse or neglect. In some circumstances, abusers might intentionally target an older adult because of a mistaken belief that all older adults are more vulnerable than other members of society. However, most abusers personally know the victim in some way. Abuse can be intentional or unintentional harm. ! "! ! Social factors and relationship dynamics can contribute to the abuse. Social isolation can make an adult more vulnerable to abuse or make it harder to access assistance. Older adults are sometimes abused by people they rely on for assistance, support or companionship. Older adults are also abused by younger family and friends who are financially or emotionally dependent on the older person. Sometimes, elder abuse and neglect is a form of domestic violence like spousal assault. Frances has been married to Harry for over 40 years. Harry has physically and psychologically abused Frances for most of their relationship. When Harry takes early retirement due to his decreasing mobility, his violent behaviour escalates. Who is an elder? In this publication, “elder abuse” refers to mistreatment of older adults. Sometimes, the term “elder” is used to refer to older members of Aboriginal communities who are respected for the wisdom they have gained during their longer lives. However, for the purpose of this material on elder abuse, the term “elder” refers to all older persons, regardless of culture or First Nations membership. An older adult is not just a person who is over 65 years old. An adult who is younger than 65 can be a victim of elder abuse or neglect if the circumstances of abuse relate to aging and a need for assistance or support. 4. Examples of elder abuse • over-medicating a person: prescribing medication that is not needed; administering too much medication Aparna increased her mother’s medication, without consulting a doctor or her mother. The extra medication has severely limited her mother’s alertness and agility, confining her to bed.